Formalizing Gratuitous and Contractual Transfers: A Situational Theory
Adam J. Hirsch
University of San Diego
August 14, 2014
Washington University Law Review, Vol. 91, No. 4, 2014
San Diego Legal Studies Paper No. 13-134
By tradition, gifts, wills, and contracts are formalized according to protocols established within each legal category. This Article examines the policies that underlie these "formalizing rules" and concludes that the utility of those rules depends fundamentally on the background conditions under which a gift, will, or contract occurs. Those background conditions, rather than the category into which the transfer falls, dictate the optimal formalizing rule for a transfer. In light of this observation, the Article proposes an integrated approach to formalizing rules that varies the required formalities for a transfer on the basis of situational criteria rather than the prevailing categorical ones.
Number of Pages in PDF File: 68
Keywords: gifts, wills, contracts, formalities, statute of frauds, statute of wills, nuncupative wills, gift causa mortis, will contract, contracts to make wills, will substitutes
JEL Classification: K11, K12, K19, K30, K39
Date posted: October 15, 2013 ; Last revised: August 15, 2014
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